As assault charges are laid against the police in the aftermath of the Marikana massacre, the outrageous reality is that torture is still not criminalised in South Africa.

A draft law called the Prevention and Combating of Torture of Persons Bill is before parliament but far from adoption. The relevant parliamentary committee has postponed the public hearings on the bill that had been scheduled for August. The hearings are finally happening this week.

The bill as it stands is woefully deficient, as it neither holds the state accountable for torture that officials perpetrate on its behalf, nor guarantee redress or recompense for victims, according to the Centre for the Study of Violence and Reconciliation. These omissions are even more reprehensible in light of Marikana.

It is barely 18 years after South Africans formally ended a regime in which the police routinely used measures ranging from brute force to torture in silencing legitimate demands. This is what informed the post-apartheid decision to transform the police force into a police service.

In a perilous lapse of memory, we have in the past few years seen a remilitarisation of the police amid resurgent calls from politicians for police to use maximum force, signalling the rise of an authoritarian populist tendency in the ruling party. It therefore doesn’t seem like a coincidence that, at the same time, legislators have been lackadaisical about criminalising torture.

If lawmakers were compelled to act in the public interest, rather than pander to factional, elite-driven interests in the ruling party to ensure their continued tenure in parliament, the torture bill might have been passed a long time ago.

In contrast we have witnessed flurries of activity around legislation that represents internal ANC constituencies’ interests in advance of the ANC national conference to be held in Mangaung in December this year.

Among these are an enthusiastic punting of the Gender Equality Bill (GEB) and a face-off over the Traditional Courts Bill (TCB) between two of ANC leader Jacob Zuma’s myriad divergent internal support bases: the ANC Women’s League and traditional leaders.

The GEB entrenches the principle of equitable representation of women in the upper echelons of the state and private sector. Lulu Xingwana, minister for women, children and people with disabilities, was betting on this bill to quieten discontent, also within the ANC, about her ministry’s lacklustre performance.

After all, the bill addresses the concerns of a constituency in the middle class and elite which is still being locked out of senior positions merely because of their gender.

It is a worthy cause. But the zealous promotion of the bill contrasts starkly with the silence from women in power, including Xingwana, about the collapse of organisations such as Rape Crisis and the Saartjie Baartman Centre that provide support services to women who survive gender-based violence.

These organisations help the most vulnerable: women with little resources who, without assistance, would remain trapped in domestic violence. But the ANC Women’s League’s internal party power base seemingly does not depend on such women.

Xingwana received an unexpected political boon in the form of the TCB, as it allowed her to position herself as vocal defender of rural black women – face-to-face with the ANC’s traditionalist lobby, which is hell-bent on expanding its anti-democratic powers.

Contradictory reports abound about the status of the TCB, with Xingwana even claiming an “overhaul” of the bill. But the justice department’s subsequent proposed revisions retain the bill’s recreation of the apartheid-era separate and unequal legal system for rural black people.

While these groups are jockeying for power, Zuma, with one eye on Mangaung, has tried to turn his TV-broadcasted faux pas equating womanhood with heterosexual motherhood into political capital. He released the Green Paper on Families to “contextualise” his statement, a move sure to be popular with his retrogressive support base.

This arbitrary use of laws and policies to shore up support from contending factions in the ruling party, instead of concentrating on the country’s real problems, unsurprisingly produces results that undermine the intent of the Constitution and legislation adopted earlier on in the post-1994 process of democratic consolidation.

It is a factionalism suffused with authoritarian populism that, head-to-head with constitutionalism, causes a schizophrenia in the state. Into the resultant breach steps a politicised police service, transformed in name only and therefore only ever one step away from reverting to its erstwhile violent ways in protecting the interests of a privileged few. These are the makings of the Marikana massacre.

It is the same schizophrenia that enables the similarly politicised National Prosecuting Authority (NPA) to opt for the apartheid distortion of the “common purpose” legal doctrine to prosecute people protesting heinous exploitation at Lonmin mine. When questioned, the NPA compared these protestors to “robbers” in what sounded like a Mogoeng Mogoeng interpretation of post-apartheid justice.

We need a re-think to entrench public accountability, starting with the political leadership of this country. Constitutional law expert Prof Pierre de Vos at the recent “People’s Power, People’s Parliament” civil-society conference suggested a compulsory revamp of political parties’ internal election processes to allow room for public representatives to indeed represent the public rather than their parties’ (factional) interests.

De Vos’s argument is that changing the electoral system to allow some measure of direct representation, rather than the current system where party leaderships determine who goes to parliament, is insufficient to address the lack of accountability. The failure of the system of directly elected municipal councillors to enhance accountability is a case in point.

Following the examples of countries such as Argentina, Mexico and Germany, a party law should be adopted to compel political parties to have democratic internal election procedures concordant with the country’s election laws.

The law should render internal elections of individual members to party lists open to scrutiny, including how individuals fund their campaigns. Of course, party funding should also be transparent, as the “People’s Parliament” conference recommended in a memorandum handed to parliament.

Direct public accountability would produce public representatives that are seized with the multiple systematic and Constitution-based interventions required to resolve the socio-economic nightmare underlying the Marikana massacre – rather than factional and personal interests. This is essential to prevent future Marikanas.

This blog is based on a monthly column that first appeared in the Independent Group’s dailies and is made available by the Open Society Foundation for South Africa to monitor the health of our democracy.

Christie, its understandable why you still can’t grasp the importance of the TCB on preserving and strengthening African culture with a more humane system of justice compared to our current eurocentric retributive justice system, still alien to our rural folk. Post-colonial countries, e.g. China, India, South America, Middle East etc., are all re-installing traditional justice systems especially in rural villages. Your blind spot unfortunately prevents you from seeing that there are better systems of justice that have served small rural communities for thousands of years, that don’t require the growing inhumane state prison-industrial complex designed to serve the needs of the 1%.

Why you speak against the GEB is also mind-boggling, since almost TWO DECADES after liberation, white males still comprise over 90% of top CEO positions!!! Government, on the other hand, has already transformed by allowing women to swiftly move up the management ranks. Rather than simplistically fixating on the symptoms (rape and trauma centers), empowering millions of women of color, who bore the brunt of discrimination, is a smarter strategy. Its sad and strange why you can’t see this?

The Marikana massacre is still being investigated, yet you’ve already fingered government. While I agree that the simple-minded NPA also jumped the gun, why can’t you wait to see why this protest deteriorated the way it did and who authorized the use of live ammunition in the first place?

bernpm

“….the sign of a schizophrenic state?….
More the sign of a company that cannot run his own business.
If companies had a similar body as Universities with their “Student councils”, things could have stayed intern and resolved within their own “world”.

Instead, they leave internal matters -remuneration is after all an internal matter- to outsider manipulations. Be it via the board of directors, advised by ANC top shots or te UK sharehoders or be it by delegates of Cosatu (NUM), a government partner.

The rise of an outsider union throws stones in this cosy relationship. Management nor workers know how to handle this, tempers flare, victims fall and problems not solved long after the victims have been buried.

Lesson learned: do not make an internal remuneration problem an international scandal. The top brains (if …..) should be able to manage the emotional responses. That is precisely why they have these exorbitant salaries. They failed miserably!

ntozakhona

One of those schezophrenic contributions. In South Africa a bill goes through various processes before it becomes law. These processes helps to ensure , amongst others, that it is constitutional and not ”inadequate’. There is no time limit to democratic processes and thus the time it takes to legislate different bills may differ according to content, parliamentary support and inputs at public hearings. To impugn everything to Mangaung is naive or sinister.

All the bills in question emanate from ANC ranks and it is illogical and really naughty to classify them as Mangaung and non-Mangaung. Maybe recommendations about internal party democracy should be made to the DA. ANC public representatives are not hand picked by party bosses but a result of a rigorous processes that begins at branch level and culminates in a nomination conference.

At municipal level the process includes communities and NGOs. 50% of councillors are directly elected and it is thus nonsensical to claim otherwise. It is really sad that in this day and era there are funded institutions that relagate the redress of gender inequity and inequality to some imagined or real factional figthts. Should we not be happy that a Minister is sensitive to accusations of inactivity and is doing something positive about it?

Ag man, there is much to critique in SA society but clutching at political straws masks a colonial agenda.

ntozakhona

Imperialists countries and colonialists have fermented violence and chaos in African and Latin American countries to escalate divisions enabling them to continue to loot resources. During the Mbeki and Mandela era colonialists in SA paraded with glee crime statistics and accused the ANC of being soft on crime. The Zuma administration implemented measures that are drastically reducing crime and it gets condemned for militarisation. Who actually benetits from this crime?

It is not true that torture is not outlawed in South Africa. It is within anyone’s rights to lay charges against the police at any police station if tortured. The citizen has an additional outlet called the IPID that specialises in inestigating those kind of misdemeanours.

It is a tribute to the ANC that despite these relief measures it is proposing to tighten screws through the ”anti-torture” bill. The ANC has inherited the State that serves the interests of the ruling class. Any attempts by the ruling party to transform is met with outrage. We were told that the appointment of Mogoeng Mogoeng will collapse the judciary, nothing of the sort has happened.

The previous assertions on this website that judges are gods were not challenged by authors of the column under review, so why is Mogoeng Mogoeng not treated as a god? That is their logic not the ANCs!

ntozakhona

Lest one is deliberately misunderstood and distorted as the ruling, lying leisure classes love to do – there is a differece between the ruling class and the ruling party. Ha, kwa suka loko! That is a topic for another day, maybe not.

Tofolux

@Christi, it must be acknowledged that gender equality has been on this ruling party’s agenda and its affilliates for over 50 years and it is incorrect to be dismissive of this particular and very important lobbying for gender equality. Firstly, lets remind ourselves of some of the important issues that affect women directly, culture and religion, safety and security, the justice system and access, maternal mortality rate, teenage pregnancy, basic education and literacy, water and land, access to vital resources, food security, rural development, industrial plans and policy, etc etc. Now, it is incorrect to negate all the material conditions on the ground that affect women in particular directly, as mere factional pandering.There has been more promotion of women rights under this ruling party than anywhre in the world. Not only have we seen a Ministry for women, we also have a womens parliament. Now,either it is deliberate or very poor understanding, when u do not understand the importance of leverage of these institutions in the promotion of women’s interest. These interests are national, continental and worldwide. Even if we should have another govt, there can never be a reversal of any of the inroads made. Thabo Mbeki was right, we do live in two totally different countries. The complete dismissal of womens challenges and our experiences especially in culture and religion speaks to this. What is obvious is the fact that you write this from a completely priviledge…

Peter Joffe

We have BEE and we have BBEEE and BBBEEEEE and God knows what other BEES but the only good BEES are the ones that look after our flowers and produce honey.
Now we are going to have GEB’s (Gender Equality Bill)!! When are we going to have “OQI” (Only Qualified Appointments)?
The existing legislation ensures that unqualified and inexperienced people get into positions that they cannot handle and now too we will have to tolerate BEEBW (Black Economic Empowerment for Black Women) as well.
I have no issue with race or gender but I do have tremendous issues with Dodo’s trying to overlook our extinction as they could not overlook their own.
When is the ANC going to learn that you cannot legislate performance, experience and training into exisitence??

Tofolux

priviledged position. Also to make a point, the debate around smoking legislation was started by a woman who was a member of the ANCWL. This legislation and debate irked many people and big corporates. Undeterred, this woman, lobbied for support from all the affiliates and she won the day. This important piece of legislation is now re-enacted in various parts of the world but for SA in particular is contributes to reducing challenges in our health sector but also ensures better health for all in SA, today. It must be remembered that those who vote for a leadership at conferences are delegates from branches. I am quite surprised that you are so dismissive of their intelligence in the face of all the important resolutions that these very people have taken in the interest of this country. Some of these resolutions are so forward thinking, that the British and Americal delegations(observers) lauded them for their comprehensiveness on such important issues. I am quite amused at the preoccupation we have with the utterings of social commentators. Sure some are learned, but are all intellectuals necessarily right? De Vos, does have good comments but he is no guru. The events at Marikana has nothing to do with factions in the ruling party and this must be the weakest argument I have heard to date. There are some critical questions that needs to be asked in order to move forward. But this pre-occupation with Mangaung is making reasonable people completely unreasonable.

http://hismastersvoice.wordpress.com/ The Creator

The identification of the problem is weak because all states are “schizophrenic” in this limited sense; the United States being an obvious example, where torture and state murder coexist uneasily with a Bill of Rights which supposedly prevents torture and state murder.

The solution to the problem is even worse; the idea that political parties should be controlled by people who are not members of the political parties, interfering with the parties’ leadership choice, is remarkably distasteful and goes far beyond what, for instance, the IEC does in monitoring party elections (which they don’t do often or well enough in my view).

It seems to me that Van Der Westhuizen is exploiting the massacre to push an agenda which is aimed at bringing political parties more under the control of the corporate interests which fund NGOs than at present — and frankly I think that corporate dominance of political parties is already way too bad without giving George Soros the final say over who gets to run for our Parliament.

Enough Said

Thanks for this informative read Christi.

Enough Said

@The Creator

“It seems to me that Van Der Westhuizen is exploiting the massacre to push an agenda which is aimed at bringing political parties more under the control of the corporate interests which fund NGOs than at present — and frankly I think that corporate dominance of political parties is already way too bad without giving George Soros the final say over who gets to run for our Parliament.”

I have not read so much confused conspiracy theory crap for a while. Have you really read and understood what Van Der Westhuizen wrote?

>>

Max

Lulu Xingwana, minister for women, children and people with disabilities. Remember when she recently stormed out of an art exhibition at which she was scheduled to speak, because the exhibition celebrated and supported the rights and freedoms of lesbians? She threw a tantrum about the work being pornographic (which it certainly was not) and stormed out like an offended self righteous fundamentalist adolescent. Now she is the minister for women, children and people with disabilities. That name in itself is an insult to women.

Then we have Dave Harris with his eyes closed and his fingers in his ears shouting TCB, TCB, TCB… he says we need TCB because it served Africans for thousands of years in a fictitious utopian idyllic past of his nostalgic invention – when all black people in Africa lived as Adam and Eve in the Garden of Eden. Has he not heard of Ukuthwala or Ukungenwa and how these traditional courts principles legitimize the abuse of women?

Max

And tofolux reckons “gender equality has been on this ruling party’s agenda and its affilliates for over 50 years and it is incorrect to be dismissive of this particular and very important lobbying for gender equality” – tofolux’s words.
If that is the case, then why did Lulu storm out of the exhibition supporting women’s rights Tof? I don’t believe Lulu would recognise women’s rights if they bit her in the bum.

Jon Story

@Dave Harris.
Although traditional courts may have ‘for thousands of years’ seen to the needs of rural folk we must not forget that nowadays even in the most remote villages people have acces to modern devices such as cell phones and TV. We live in the 21st century in the ‘global village.
Morover, when democracy descended on SA the promise was to do away with discrimination in which people were treated differently before the law.
From that day the constitution (flawed as it may be) was to be the one law for all people, from the president down to the lowest in the land. In theory at least.
It is therefore curious that you advocate the TCB in which rural folk will be treated judicially differently than urban folk.

You say that 90% of the CEO’s of the country are still white and male. In the context of Gender Equality race is immaterial.

I think you have missed the aim of the article which I believe is to point out the different priorities of the ANC government and their bearing on the Marikana tragedy.
Which, prima facie, was the police (government) against the strikers: 34 people shot dead, 240 or so arrested on murder charges.
You yourself were at the time quick to finger the mining company as the culprit. That you seem to have seen reason is progress.

Philip

ntozakhona sadly denies the fact that his own people have become the new colonialists who are busy plundering the resources and the state. The cookie jar will soon be empty and despite all the first world legislation service delivery will fail the ANC masses. All the ingredients for a great revolution, hang in there ntozakhona.

MLH

And on the women’s issues, don’t forget the decision not to pay grandmothers and elder siblings the grant for all those little Aids orphans dragging them down. Heaven knows what child-headed households will do. Ours is a state that refuses to take responsibility for building orphanages and old-aged homes, but has a department for women, children and the disabled. Something’s really not right!

http://blogroid.wordpress.com blogroid

A reason put forward by the Police FORCE [no longer SERVICE] to rationalise shooting some 150 workers was that the protesting persons were armed.

The term used to describe this armour is “Traditional” … The reason weapons were present was because the holders were [apparently] all from places that have been carefully maintained for centuries as “Traditional” slave labour centres, in which a privileged [unelected] class called “chiefs” [royalty by any other name] benefit immensely from their right to extract ‘rents’ from those residents who live in Feudal servitude. So the weapons were “Normal”.

Curiously, Provocateur Harris, who routinely rails with some justification against the extractive nature of corporate capitalist exploitation, seems to feel that this anti -democratic allocation of national resources, that dates back to the 19th century … when the formal dispossession of Africans from private property ownership started btw, is OK… whereas it is simply an instrument permitting a new/old class of elites to reap rents from the misery of disempowered people.

Admittedly all States have aspects of schizophrenia in their make-up… but why a State that proudly presented itself as a world leader in democratic values seeks so resolutely to plunge a third of the population back into a feudal no-persons land is incomprehensible… and ultimately can only benefit those who seek to live at the expense of the poor.

Tofolux

@MLH, wow, that must be one of the most insensitive comments I have read to date.
But lets make the point, it is exactly these kinds of insensitive perceptions displayed and the nuanced views eg Max, that degrades the issues of women. It not only reduces important challenges but lacks the insight and sensitivity to grapple with the importance of addressing those challenges. As a very young woman, even I understand that no other woman would jump on the bandwagon and reduce our issues. And yet, here you have a clear example such as this author, who not only does it, but clearly solidifies her anti-gender views. So sure, we as woman cannot claim that we have solidarity from all woman, but this again is a product of the class contradictions. For MLH or Max, there clearly is no good reason to engage their bias. But for Ntozakhona, Dave Harris, the Creator, you are my proverbial ”brother-in-arms” thank you.

Reducto

@Harris: You keep repeating the same nonsense about the TCB without ever engaging with any of the legitimate criticism leveled at it, in particular:

> The TCB does not make provision for the participation of women.

> The TCB allows traditional leaders to make and apply customary law with little to no consultation, which runs contrary to legitimate customary law.

> Many of the traditional leaders owe their positions today to complicity with the apartheid state, often being put in place of legitimate traditional leaders who were removed for not cooperating.

> The TCB reinforces apartheid-era boundaries.

You accuse others of having a “blindspot”, while showing the intellectual dishonesty to not engage with criticism. You blindly accept ANYTHING the ANC suggests, and resort to calling others “BOAs” when you can’t argue on the facts.

ntozakhona

Phillip who are my people? My people are South Aricans black and white committed to a radical economic and social transformation of society to ensure that all share in the wealth of the country. The South African definition of a colonialist is one who assumed power through violent conquest then using same to amass wealth denying indigenous people (the conquered of all basic rights).

Those who continue to cling to the social and economic priviledges of a violent conquest at the expense of a suffering and below the breadline living majority are the colonialists. The emergent and contexually very tiny black middle class cannot be colonial as they also have intererest in change as they will upgrade to capitalists.

It will be helpful to do some reading and learn how to do analysis before bellowing at everything that is unfamiliar to your herd. As the Beetles said ” I hope one day you will join us”

Just for good measure those who are arrogant enough to be experts on traditional african systems display a colonial mentality in its worst forms. I worked in Ganyesa village under Kgosi Letlhogile and I frankly think they are dreaming up the things they write about. There is a difference between debating and being argumentative bagaecho!

Have the colonial in our society never heared about Queen Manthatise and Queen Modjadji? Our languages do not have sexist references to ”she, he” nor sexist names like Phillip, Max etc . Thabo is both male and female, the traditional…

ntozakhona

The traditional court not the invention of a prejudiced colonial mind is goverened by the constitution of South Africa. Even Mangosuthu Buthelezi agrees that what colonialists perceive as traditional courts is their invention. They recreated African society in their own oppressive image hence Mangosothu claims to have abolished the Zullu code when he was an apartheid Chief Minister.

The TCB will assist undo the legacy of Benjamin D’Urban and reclaim the best of African indigenous knowledge systems.

ntozakhona

He,he,he! Why is it that those who are opposed to measures to romove gender iniquity, inequality amd inequity are the one suddenly concerned about imaginary gender issues that they impugn on traditional courts? Talk about schizophrenia!

Max

I raised questions about the sexist childish behaviour of Lulu. I raised queries about Ukuthwala and other dubious traditional courts principles.

Tolofux says in response that “there is no good reason to engage my bias.”
Ntozakhona’s response is even more pathetic: the name Max is sexist and the sexism inherent in traditional courts is non-existent.

Truly pathetic child-like responses from you both.

ntozakhona

Max it seems to you ignorance is bliss. There is a document called the South African constitutin that I said reigns supreme over all courts. Ukuthwalwa if you have some sense of logic is thus prohibited and illegal on that basis. In fact the archaic practise is a demented distortion of African traditions isolated to the east coast.

As much as we grew up being told by our domestic worker parents that fathers in colonial homes and later reading about such incidents in newspapers we cannot then seek the destruction of families. The proclivities of individuals do not determine a policy designed to benefit the greatest majority.

We cannot be responding to every demented statement posted by those who stock-piled food in angst when Mandela was elected president. They are simply crazy.

Max since you know so much about Africans to the extend you feel the need to tell them wo they are, I recommend a mental assylum called the Boeremag to you. They have interesting ideas about food on the road to Zimbabwe, maybe you will add Ukuthwala to their programme.

Boa Constrictor

ntozakhona, are you saying that Max is not an African? If not an African, what is he?

Please can you define the term “African” for us please so we can gain some clarity and understand each other.

Sadly, I fear this may the fundamental reason why we talk passed each other…..

Boa Constrictor

..or “past” each other even……(sorry, I blame spell cheque)

Geodev

It is amazing but not surprising how the level of constabulary efficiency in the RSA has embraced its own brand of recividism. Based upon a poor role of police procedure inherited from the years of apartheid rule, the model appears to have evolved and then devolved from control to patrol and reverted back to control as new party elites have secured their positions among the privileged few in order to protect themselves from their own constituencies. While they may believe that it is a novel concept, they must (MOET) heed the caveat that it is as old as civilization, as is the eventual groundswell response which follows..

jandr0

@Tofolux: You say: “And yet, here you have a clear example such as this author, who not only does it, but clearly solidifies her anti-gender views.”

You are delusional. What anti-gender views were expressed?

What I read was pro-gender views, and an anguished desperation that Lulu Xingwana DELIVERED very little (typical ANC), and now wants to try and hide the failure of actual delivery by the standard ANC cop-out: Create a new law.

Oh yes, and then follow that up by insinuating whites are not doing their bit.

Note: The author is claiming that BETTER things should have been done. For you to extrapolate from that an ANTI-gender view is reasoning of the poorest kind.

@ntozakhona had some part of it right, but even more right if I correct “sensitive to accusations of” to “guilty of”: Should we not be happy that a Minister is guilty of inactivity and is doing something positive about it?

To repeat, that “something positive” is again – NOT actual delivery – but rather the lowest-effort social engineering edicts typical of the mostly clueless ANC.

Frankly, I would be quite happy if ALL the top CEOs in the country were women, as long as they were the best people for the job. But then, you must understand, I really do not see gender or race when it is about the best person for the job, whereas you are apparently pro-discrimination on gender and race.

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Dr Christi van der Westhuizen is an award-winning political columnist and the author of the book Working Democracy: Perspectives on South Africa's Parliament at 20 Years, available for download at www.pmg.org.za.
Twitter @ChristivdWest;
Email christiwza[at]yahoo.com.